Moreton Bay Regional Council v White & Anor [2018] QLAC 4

Land to which Council has assigned the Land Use Code Identifier 3 - Multi-Residential; and;

Where the number of flats on the physical land parcel is equal to 2

Where the number of flats on the physical land parcel is equal to 3

Flat means land that is subject to one rate assessment and contains more than one residential dwelling."[4]

[5] The category of multi-residential dwellings (flats) extended up to F65, where the number of flats on the physical land parcel was equal to or greater than 65. At the very end of the rating categories was Class O, which relevantly contained the following:[5]

Land not contained in any other differential rating category and the rateable value of the land is less than $1,000,000

[6] At the hearing before the President the Whites contended that their property ought to be categorised as R1. I agree with the President's decision that it cannot be, because it does not contain "a single residential dwelling".

[7] The President determined that the Whites' property could not be categorised as F2. Her reasoning in this regard is as follows:

"The descriptions and definitions for Category F are unhelpful. The title for this group of categories is Multi Residential Dwellings (flats). There is no definition of what is a Multi Residential Dwelling. The usual definition of dwelling is a house, flat or other place of residence. A Multi Residential Dwelling could mean multiple residential dwellings within a building (such as a unit or a flat) or multiple separate and discrete residential dwellings on a single parcel of land, (such as two houses or a house and a studio or caretaker's cottage).

The ambiguity in the title for the F category is not assisted by an apparent conflict between the description used for each category in this group and the definition of 'flat' which applies to the F category.

There are 62 F categories, where the number of the category corresponding to the number of flats on the land. The definition of 'flat' is 'land that is subject to one rate assessment and contains more than one residential dwelling'. That description does not clarify whether the number of residential dwellings refers to residential dwellings within a single building or separate buildings or both.

Further, the definition of flat unhelpfully focuses on the land, not on the form and structure of the dwelling. That creates a difficulty when applying the definition to the description of an F category. Category F2 is described as: 'where the number of flats on the physical land parcel is equal to 2'. Interpreted literally, F2 applies to a physical land parcel, whatever that means, which contains two flats; i.e., two areas of land that are subject to one rate assessment and contain more than one residential dwelling.

The definition, therefore, does not assist to determine the essential question, whether F2 is the appropriate category for land subject to one rate assessment which contains two separate and discrete residential buildings.

The Council has not clearly defined the type of residential dwellings it intends to rate under the F category. The definition of 'flat', with its focus on land, provides no assistance in interpreting the category regardless of how residential dwelling is interpreted. That ambiguity can be resolved by applying the ordinary meaning of flat to the term 'residential dwelling' in category F2. Interpreted in that way, category F2 is not the appropriate category for the property."[6] (citations omitted)

[8] In the result, the President determined that the correct category for the Whites' property was O1.

[9] Council appealed from this decision, saying that the F2 category was the correct category because the Whites' land, "was land that is subject to one rate assessment and contains more than one residential dwelling."[7] The difficulty for the appellant Council is that the language of the rating resolution does not, on any literal construction, accord with that submission. I agree with the President that the definition of "flat" at section F of the rating resolution is unhelpful in interpreting category F2.

[10] In effect the Council asks that the words of the rating resolution be construed to accord with the wording of its submission. It relied upon Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide[8] for the proposition that resolutions of a Council ought not be construed in an overly pedantic way. The relevant part of that decision is as follows:

"For reasons that will emerge as this judgment proceeds, I shall turn first to consider the effect of earlier resolutions on the resolution of 23rd October, 1973.

The arguments advanced by Mr Prior in support of his contention that at least one of the two vital resolutions of June 1972 and October 1973 was invalid were avowedly technical, and for the most part rested upon a strict construction of the resolutions referred to. True it is that resolutions represent the formal embodiment of decisions of the Council, but I believe it would be a mistake to read them as if they were acts of legislation. I must bear in mind that, for the most part (as their wording often evidences) they are formulated on the spur of the moment, and bear much the same sort of relationship to debates in Council as propositions formulated by counsel in Court bear to the dust and conflict of forensic strife; it is essential, therefore, to look at the circumstances in which the resolution or proposition was made if it is to be given its fair and natural meaning. I am of the opinion, too, that a court should not be too ready to attribute to a Council an intention to contradict itself, or to pass inherently inconsistent resolutions; and that if it is possible, by a not unreasonable construction, to harmonize two or more apparently conflicting resolutions, then that is the construction that should be adopted. It would, accordingly, be misleading to rely only on the bare words of a resolution disengaged from the events that led to, and resulted from, its being passed, and to look for unreason rather than for reason."[9]

[11] There are three points of distinction between that case and this. The first is that the rating categories were not formulated on the spur of the moment, bearing a relationship to debate in Council. They were a considered technical document introduced as a resolution to a special general meeting of Council. For that reason I think the Court is right to look at what words the Council chose to use. Secondly, there is no debate to give context to those words, as seems to have been contemplated in the Myer Queenstown Garden Plaza case. Thirdly, the rating resolution is a resolution which imposes rates upon the residents of the Moreton Bay region and for this reason ought to be construed according to its terms, not in some way charitably towards the Council, unless there is a very obvious intention or purpose behind the words which have been used.[10]

[12] In my view the words used in the rating resolution are not sufficiently clear that an intention is plainly apparent to capture a situation such as the Whites, where an elderly, or perhaps in another case a disabled, person is accommodated on the same lot of land as their family, but with some degree of independence. Looking first at the language, the situation here does not, to my mind, clearly fall within the words "multi-residential dwellings"; there are two dwellings on the land, but neither, to my mind, is multi-residential. Nor to my mind is either dwelling a flat, within the ordinary English meaning of that word. The statutory definition of "flat" does not assist. Furthermore, the situation is not one where there are two flats on the land, whether a flat is used in its ordinary English word, or as defined.

[13] Turning from the language to the context, it is difficult to see any purpose or intention of Council to charge someone accommodating an elderly relative, or a disabled relative, in the way that the Whites are accommodating Mrs White's mother, as though they were conducting a commercial enterprise, or as though their family living arrangements were costing the Council more in terms of services.

[14] For these reasons I think the decision of the President was correct and the appeal ought to be dismissed.

[15] MEMBER COCHRANE: I concur with the reasoning of Dalton J and with the order proposed.

[16] MEMBER STILGOE: I agree with the reasons of Dalton J and with the order proposed.

[1] White & Anor v Moreton Bay Regional Council [2017] QLC 51, [2]; Local Government Regulation 2012, ss 93(2) and 93(3).

[2] Appeal Book filed 17 January 2017, p 78 (photograph).

[3] Appeal Book filed 17 January 2017, p 27.

[4] Appeal Book filed 17 January 2017, p 27, 28 and 34.

[5] Appeal Book filed 17 January 2017, p 55.

[6] White & Anor v Moreton Bay Regional Council [2017] QLC 51, [7] - [12].

[7] Notice of Appeal filed 19 October 2017, p 2, para 1.

[8] (1975) 33 LGRA 70.

[9] Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70, 91-92.

[10] Anderson v Commissioner of Taxes (Vic) [1937] HCA 24; (1937) 57 CLR 233, 239; Hepples v Commissioner of Taxation (Cth) [1992] HCA 3; (1992) 173 CLR 492, 510-511; Commissioner of Taxation (Cth) v Westraders Pty Ltd [1980] HCA 24; (1980) 144 CLR 55, 5960.